The protester claimed the agency failed to comply with the rules for using other than competitive procedures because it didn’t issue a justification and approval (J&A). The agency argued it was exempt from needing a J&A. GAO ruled that the agency conflated statutes and that the plain language of the statutes did not support the agency’s interpretation. GAO, therefore, sustained the protest.
E.K.K. Investments, LLC, GAO B-423246
- Protest – The protester objected to the agency’s establishment of a blanket purchase agreement (BPA) to procure fresh fruits and vegetables for resale at commissary stores. It claimed the agency failed to comply with the requirements for using other than competitive procedures.
- J&A Requirement – The protester pointed out that the agency failed to issue a justification and approval (J&A) document and failed to solicit offers from as many sources as practicable. The agency responded that a J&A was not required for the procurement of commercial products for resale in commissary stores. It explained, “because § 2484(f) now brings all commercial products (including generic) under
§ 3204(a)(5), it necessarily follows that the exemption [for executing a J&A] under
§ 3204(e)(4)(B) applies to those same items.” - Decision – GAO found the plain language of the relevant statute did not support the agency’s argument. The agency conflated the broad exception in § 2484(f) with the exemption in § 3204(e)(4)(B). § 2484(f) only applies to procedures under § 3204(a)(5), not § 3204(e)(4)(B). Furthermore, FAR section 6.301(d) plainly and unambiguously requires an agency to solicit offers from as many sources as practicable when using other than competitive procedures.
- Recommendation – GAO recommended that the agency cancel the BPA and acquire its needs competitively or take the steps necessary to acquire its needs in a manner other than competitive procedures.
The protester is represented by Keith R. Szeliga of Sheppard Mullin Richter & Hampton LLP. The intervenor was represented by Shomari B. Wade, Michael J. Gardener, Jordan N. Malone, and Olivia C. Bellini of Greenberg Traurig LLP. Lance H. Locke and Brett J. Sander of the Defense Commissary Agency represented the agency. Michelle Litteken and Christina Sklarew of GAO participated in the preparation of the decision.
— Case summary by Joshua Lim, Assistant Editor.
